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Discussion

In execution proceedings governed by the Code of Civil Procedure, 1908, where property of the judgment-debtor is attached and a third party raises a claim asserting independent title, such claim :

  • A.Shall be adjudicated by the executing court.
  • B.Requires prior determination by the court which passed the decree.
  • C.Must be decided by instituting a separate civil suit.
  • D.Can be decided only after completion of execution proceedings.

Answer: A

The claim shall be adjudicated by the executing court.

Under Order XXI Rule 58 of the Code of Civil Procedure, a claim or objection to the attachment of property in execution of a decree is decided by the court executing the decree, which determines all questions of right, title and interest between the parties. Since the 1976 amendment, Rule 58(2) makes that decision final in the execution itself and Rule 58(4) gives it the force of a decree, so no separate suit is needed.

A separate suit is now generally barred, the court that passed the decree has no special role, and the claim must be decided while execution is pending, not after property has already been sold.

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